The opinion
*155 Concurring Opinion by
Mr. Justice Bell:
I concur in the affirmance of the order, but for an entirely different reason. Every owner of property in Pennsylvania is still entitled to certain inherent and indefeasible rights — among them the right to acquire, possess and protect property — which are ordained in and guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, §1, §10, and Article XYI, §8 of the Constitution of Pennsylvania.
In Archbishop O’Hara’s Appeal, 389 Pa. 35 , 131 A. 2d 587 , the Court said (page 57-58) : “In Lord Appeal, 368 Pa. 121, 130 , 81 A. 2d 533 , quoting from the leading case of White’s Appeal, 287 Pa. 259 , 134 A. 409 , it was said: . . There is one matter that is quite certain, the power to thus regulate [when clearly necessary to preserve the health, safety or morals of the people] does not extend to an arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property, even though such acts be labeled for the preservation of health, safety and general welfare . . . While such regulations may not physically take the property, they do so regulate its use as to deprive the owner of a substantial right therein without compensation. . . . “The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen’s natural liberty, —an expression of his freedom, — guaranteed as inviolate by every American bill of rights”: Spann v. Dallas, 111 Tex. 350 , 235 S.W. 513 .’ ”
The right to acquire and own and use real property was part of a man’s fundamental liberty — an unalienable right established several centuries before the *156 Constitution of the United States or the Constitution of Pennsylvania was adopted. Every citizen of Pennsylvania possesses these unalienable and constitutional rights of liberty and property, and he cannot be deprived of them by the Federal or State or local Governments, or by Legislatures, or by Courts, but only by the People. These unalienable rights “include a right to use his own home [and property] in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional. It is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are necessary for the preservation of public health, safety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of property; White’s Appeal, 287 Pa. 259 , 134 A. 409 ; Taylor v. Moore, 303 Pa. 469 , 154 A. 799 ; Kline v. Harrisburg, 362 Pa. 438, 451 , 68 A. 2d 182 ; Jennings’ Appeal, 330 Pa. 154 , 198 A. 621 ; Ward’s Appeal, 289 Pa. 458 , 137 A. 630 ; Bryan v. City of Chester, 212 Pa. 259 , 61 A. 894 ; Taylor v. Haverford Township, 299 Pa. 402 , 149 A. 639 ; Perrin’s Appeal, 305 Pa. 42, 48 , 156 A. 305 ; Village of Euclid v. Ambler Realty Co., 272 U. S. 365 , 47 S. Ct. 114 ; Penna. Coal Co. v. Mahon, 260 U. S. 393 , 43 S. Ct. 158 ; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 , 39 S. Ct. 274 ; Eubank v. Richmond, 226 U.S. 137 , 33 S. Ct. 76 .”: Lord Appeal, 368 Pa. 121, 125-126 , 81 A. 2d 533 .
These rights and principles have been reaffirmed and reiterated in recent decisions of this Court: Volpe Appeal, 384 Pa. 374 , 121 A. 2d 97 ; Medinger-Appeal, *157 377 Pa. 217 , 104 A. 2d 118 ; Rolling Green Golf Club Case, 374 Pa. 450 , 97 A. 2d 523 .
An ordinance which does not determine but authorizes a number of neighbors to determine whether or not a gas station or other structure can be erected by an owner of land on his own property has no clear and necessary relationship to the preservation of public health, safety or morals, and is on its face and by its terms an unlawful delegation of legislative power or of police power. Such a delegation of power is clearly and obviously unconstitutional!
In Perrin’s Appeal , 305 Pa., supra, the Court said (page 49) : “When zoning ordinances are sustained, it is on the theory that the police power of the State has been properly exercised by the municipal authorities to which it was delegated. Police power cannot be exercised by any group or body of individuals who do not possess legislative power; a municipality, through a council, may and usually does possess legislative power within the authority conferred. Administrative officers or a group of citizens do not and cannot possess such poioer. When a municipal ordinance commits the exertion of the police power to the option of individuals to determine whether the use of property for a purely lawful purpose offends health, safety, or welfare, such ordinance violates the fundamental principles of police power. . . .”